' This is a writ petition against the order dated 29-4-1982 of the Deputy Settlement Commissioner/Deputy Administrator (RP)-IV, Farid Kot House, Lahore whereby he has ordered the transfer of respective shops in favour of the respondents Nos.2 to 12.
2. The dispute relates to an Evacuee Property No,SE-XXII-5-S-14, Hari Nagar, Lahore. According to the petitioner, this property was included in the auction list and shown at serial No,63 which comprised of 11 shops. Abdur Rasheed offered highest bid in the auction held on 7-11-1980 which was, confirmed on 7-12-1960. He was issued P.T.O. And on 8-5-1965 P.T.D. Was also issued to him. It is the case of the petitioneree that the transfer Abdur Rasheed, who was going to be married with the petitioner, transferred property by means of a gift in her name on 30-3-1970, whereas the marriage took place on 13-4-1970. This fact of gift was duly mentioned against item No,20 of the 'Nikahnama' of the parties. The factum of gift and transfer of the property in favour of the petitioner is supported by number of documents which are on record such as ejecetment proceedings against the tenants, statement of Abdur Rasheed before the learned Rent Controller, a suit filed by him against the Department and entries in the record of Excise and Taxation Department. However, due to some disharmony and discord between the husband and wife, the petitioner was divorced by Abdur Rasheed which became effective on 15-8-1978.
3. It is the case of the petitioner that after divorce, her ex-husband Abdur Rasheed became revengeful and to victimise her, he launched various proceedings at different fronts including the cancellation of the gift by filing a suit before the learned Civil Court at Lahore which suit was dismissed on 31-5-1980 and proceedings before the Settlement Department asking them to cancel the auction proceedings and the transfer deeds issued in pursuance thereof.
4. Abdur Rasheed filed an application before the Deputy Settlement Commissioner IV on 20-3-1979 that the had purchased in anction 11 shops and paid only Rs,4,700 for its transfer and that he has learnt that its reserve price was Rs,84,680 which he was not willing to pay and offered that the auction should be cancelled as also the P.T.O. And P.T.D. On this application some proceedings commenced in the Department He also appeared before the Deputy Settlement Commissioner and made a statement in support of his application and also admitted that the property has already been transferred by him in favour of Mst. Parveen Nazir by means of a gift in her favour. It appears that there were some proceedings concerning this property initiated by Ghulam Muhammad and others as to the actual price of the auctioned property.
5. The learned Additional Settlement Commissioner entrusted the inquiry to the Deputy Settlement Commissioner who after holding inquiry, ordered on 18-6-1981 that:-- ' "a fresh notice to the auction purchaser Mian Abdul Rashid and Mst. Parveen be issued with the directions that they should deposit a sum of Rs,47,000 against the balance auction price which has become recoverable against the auction price of ten shops whereas the P.T.D. Has been issued to him after recovery of Rs,4,700 as auction price which is auction price of only one shop as clarified by the Settlement Inspector vide his reports dated 8-6-1981 and 10-6-1981. In case the auction purchasers fail to deposit a sum of Rs,47,000 within 30 days from the receipt of the notice, otherwise his P.T.D should be considered to have been issued for one shop only as against the recovery of Auction Price of Rs,4,700 for the shop in possession of Khushi Muhammad only."
6. The case of the petitioner is that no notice was issued or served on her in pursuance of the order of D.S.C., but the respondents rely on a notice said to have been issued on 25-8-1981 to Mian Abdur Rasheed and Mst. Parveen Nazir c/o Mian Abdur Rasheed, resident of 9/B, Cooper Road, Lahore.
Since it is claimed that balance price was not paid either by Mian Abdur Rasheed or by Mst.
Parveen Nazir, the Department treated the transfer and P.T.D. Issued as cancelled and the occupants of the shops were recommended to be issued demand notices for transfer of the portions in their respective possession. This was the report made by the Settlement Inspector on 18-1-1982 to which the DSC-IV agreed the same day and ordered the issuance of notices to the occupants. Thereafter, the learned Deputy Settlement Commissioner/Deputy Administrator (R.P.)
Centre-IV proceeded to order the transfer of shops to respondents Nos.2 to 11 in their respective possession against the payment of Rs,2,875 each. The petitioner has challenged the order dated 29-4-1982 dealing with her property and transfer of the same to respondents Nos.2 to 12.
7. Mr. A.R. Shaukat, Advocate, the learned counsel for the petitioner contends that the transfer of the property had assumed finality after the issuance of P.T.D. And the same could not be reopened or cancelled by any means or under any authority of law. It was contended by him that the record clearly established that Mian Abdur Rasheed had transferred the property to the petitioner, his ex- wife, who was the owner of the same and that no notice was served upon her before taking any adverse action in the matter. It was submitted that she has been condemned unheard and the department acted without lawful authority in treating the P.T.D. As cancelled or dealing with the property as "resumed" without carrying with the mandatory requirements of law. It was submitted that the alleged notice dated 25-8-1981 sent to the petitioner in pursuance of the order of the Deputy Settlement Commissioner was never despatched or received inasmuch as she had been divorced by Mian Abdur Rasheed in the year, 1978 and was not living with Mian Abdur Rasheed in 1981 when the purported notice was addressed to her through Mian Ahdur Rasheed at this address of Cooper Road, Lahore. It is submitted that this was all contrivance to deprive her of property to achieve mala fide design by her ex-husband. Learned counsel for the petitioner further submits that the entire proceedings have been taken without associating her, in her absence, without her knowledge or notice and are, thus, null and void. It is submitted that since there is no resumption of the property lawfully made, the proceedings taken regarding the transfer of the same to respondents Nos.2 to 12 are also illegal and void and liable to be declared without lawful authority.
8. Ch. Inayatullah, Advocate, the learned counsel for respondents No,2 to 12 has submitted that the petition suffers from lathes, challenging the order of DSC-IV, dated 18-6-1981 and the later proceedings, whereas the writ petition in this Court was filed on 22-12-1984. It is contained that the petition also suffers from non-joinder of necessary parties as Abdul Ghani, Ismaeel, Mukhtar etc. Have not been impleaded as party to this petition. He also challenged the locus standi of the petitioner in filing this petition. On merits of the case, his contention was that while including the property in the auction list and later its auction and issuance of transfer documents, the instructions regarding the disposal of shops were not followed by the Department, therefore, the auction itself was invalid. It is further submitted that since the actual price had not been paid, therefore, issuance of P.T.D. Had no validity in law and that till its resumption an amount of Rs,47,000 remained as balance and, therefore, the Department, acted rightly in resuming the property from the transferee. It was his case that the petitioner was not entitled to any notice since she was not transferee in her own right and had no locus standi. He also referred to a notice published in daily ''Nawa-e-Waqt" dated 17-12-1983 to contend that she became aware of the transfer in favour of respondents Nos.2 to 12 and that at the most she was entitled to one shop which was in occupation of Khushi Muhammad and none else. It was contended that the department had authority even after the repeal of the law to examine the legality and validity of the P.T.D.
9. In reply to the preliminary objection as to the competency of the writ petition, Mr. A.R. Shaukat, the learned counsel for the petitioner, submits that the petitioner was never served with any notice of the proceedings and that she %as explained the delay para. 10(k) in the filing of the writ petition and that the petitioner only learnt of these proceedings and the developments taking place in the Settlement Department as to the property when the Taxation Authority informed her as to the change of ownership from her name on the application made by respondents Nos.2 to 12. It was thereafter only when she applied for the relevant copies and promptly filed the petition. He has relied on 1987 SCMR 1119 and 1991 SCMR 1592 to contend that there are no laches on the part of the petitioner in filing the petition. As regards the other objection of the respondent that necessary parties have not been impleaded in the writ petition, it is contended by the learned counsel for the petitioner that all those transferees whose names appeared in the impugned order have been cited as respondents to the petition and none has been left out. It is contended by Mr. A.R. Shaukat, Advocate that a transferee of a property has a right to defend the title and protect the property and has necessary locus standi to file the petition. He relies upon 1PLD 1983 Lahore 664.
10. Dealing with the preliminary objection as to the competency of the writ petition, first, I am of the view that petition does not suffer from laches inasmuch as the entire grievance of the petitioner is that all the proceedings have been taken behind her back, without her knowledge, in her absence and she was never heard by any of the departmental functionaries. When she learnt of the adverse proceedings taken against her and as a result of the impugned transfer of favour of respondents Nos.2 to 12 when she received intimation from the Excise and Taxation Department, she was shocked and immediately proceeded to get copies of the proceedings and the order and filed the writ petition promptly. In view of the Pakistan Post Office v. The Settlement Commissioner (1987 SCMR 1119), there is sufficiently good and plausible explanation advanced by the learned counsel for the petitioner, the petitioner, thus, does not suffer from laches.
11. The other objection as to non impleading of necessary parties also is not enable as all the persons who claim to be transferees of the property from the settlement Department as a result of purported cancellation and resumption of he shops have been impleaded as respondents to the petition. They are the Necessary parties to the petition who are on record and represented by the earned counsel.
12. As to the locus standi of the petitioner, it is established on record that the petitioner was transferred this property by Mian Abdur Rasheed as far back in the year. 1970 and the necessary entries in the record of Excise and Taxation Department had also been made and she had been paying property tax. She being the owner of the property has every right to protect her rights in the property and, in deed, she is a person adversely effected by the proceedings taken by the Settlement Department. She has, therefore, necessary locus standi to file this petition.
13. The entire case rests on the point as to whether the property auctioned and transferred by the Department could be cancelled when there is no element of fraud, forgery or misrepresentation attributed to the transferee and; whether the procedure for resumption of property on account of non-payment of the price of the same has been followed and adhered.
14. It is not the case of department that any fraud or misrepresentation has been committed in the transfer or issuance of the titled deeds of the property. The only allegation is that a lesser amount of transfer fee has been charged from the transferee. It is for the first time in the year, 1981 that an amount of Rs,47,000 was claimed to be the balance auction price from the transferee. In the order dated 18-6-1981, learned Deputy Settlement Commissioner/Deputy Administrator (RP) Lahore observed that:- ' "In case the auction purchaser fail to deposit a sum of Rs,47,000 within 30 days from the receipt of the notice otherwise his P.T.D. Should be considered to have been issued for one shop only as against the recovery of auction price of Rs,4,700 for the shop in possession of Khushi Muhammad only."
' In view of the admitted position that no fraud and forgery has been attributed or committed by the transferee, the property once transferred and having been issued long before the repeal of law, the matter of transfer cannot be re-opened nor the transfer cancelled. The only power left with the department is to raise a demand for the balance payment of price and only in the case of non- compliance resumption could take place. Apart from the principle of natural justice, that no adverse auction effecting a person or property can be taken without notice or hearing the law on the subject is now well-settled by the Judgments of the Hon'ble Supreme Court of Pakistan.
Reference may be made to Muhammad Afzal v. Muhammad Yusuf and others (1984 SCMR 296). In this case despite notices from time to time to the transferee for payment of the price the notices were not regarded as due compliance of the mandatory requirement of para. 2 of the Settlement Scheme. It was observed as follows:- ' "Reading paras. 2 and 3 together, there is a mandatory requirement of a 'demand notice' being sent by a registered post acknowledgement due and the acknowledgement receipt, when received back to be pasted on the file of the demand notice. The penal consequences flow only when the requirement of the demand notice is not fulfilled, that is, the payment of the entire outstanding amount. There is no manner of doubt that para 2 has to be strictly complied with as was held by this Court in E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536 while construing section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. In its absence the penal consequences cannot flow as it is the failure on the part of the defaulter which gives power to the Deputy Settlement Commissioner to resume the Property."
' Similar view is expressed in Sher Muhammad and others v. Settlement Commissioner and others (1988 SCMR 576) and Abdul Hamid and others v. Fazalur Rehman and others (1989 SCMR 120).
Therefore, no presumption can take place without compliance of the mandatory requirements of the relevant law.
15. After the order of Deputy Settlement Commissioner dated 18-6-1981, the department merely acted on the application of Abdur Rasheed who is alleged to have been stated that he was not willing to retain these shops nor ready to pay the balance of auction price and proceeded to treat the transfer and P.T.D. As cancelled. This was obviously an erroneous approach, to the matter inasmuch as Abdur Rasheed had already alienated the property in favour of the petitioner and had thus no interest whatsoever in the same. The only person who had right or interest in the property was the petitioner, who was totally unaware of the proceedings being conducted in her absence.
She was entitled to the registered notice acknowledgement due, before the resumption and treating the property as available for disposal. No such notice is proved to have been sent or served on her. The resumption of the property was, thus, contrary to the mandatory requirements of law and the departmental functionaries proceeded illegally in treating the same as resumed property. The property, thus, was not at all available for transfer to any other person.
16. Respondents Nos.2 to 12, who claim to have been transferred the respective Shope can only base their claim if the property was legally resumed and available for transfer to them. Since the basic order of cancellation and resumption of the property from the petitioner is violative of the mandatory requirements of law and void ab initio, the property was not "available" to be dealt with as such. The principle is firmly established and needs no citation of the judgment that when the basic order is unlawful and void, the superstructure raised in pursuance thereof also falls to the ground. The transferee made to respondents Nos.2 to 12, thus, have no valid basis and foundation.
17. In view of the above factual and legal position obtaining in the matter, since no lawful resumption of the property has taken place, the order of learned D.S.C. IVth dated 29-4-1982 transferring the property to respondents Nos.2 to 12 is without lawful authority and of no legal affect. The Department may, however, raise a demand from the petitioner for the balance price in accordance with law.
18. In view of the above, this petition is accepted without any order as to costs.